Jacob K. Vuaghogho & Ors V. Ejimi Tuacha & Ors (2008)
LawGlobal-Hub Lead Judgment Report
SAKA ADEYEMI IBIYEYE, OFR J.C.A.
This is an interlocutory appeal filed on 8th August, 2001 against the ruling of G.C. Akoro J, of the Ughelli Judicial Division of the Delta State High Court of Justice.
It is pertinent to state, albeit, briefly, the facts of the substantive case which judgment led to the instant appeal. Thus, in the writ of summons, the plaintiffs now appellants severally and jointly sought the following reliefs:
“1. The sum of N100, 000.00 (One Hundred Thousand Naira) only being special and general damages suffered by the plaintiffs from wanton trespass perpetuated by the defendants, when in or about March, 1981, the defendants, by themselves, their servants, workmen, agents and/or their privies wrongfully and unlawfully broke and entered a piece or parcel of land in possession of the plaintiffs lying and situate at Aladja in Udu Clan in the then Ethiope Local Government Area now Udu Local Government Area of Delta State and destroyed/damaged plaintiffs’ properties, deposited sand and/or installed offensive structures thereon.
2. An order of perpetual injunction restraining the defendants by themselves, their privies and all persons claiming through and/or under them from entering/remaining and/or in any way interfering with plaintiffs’ peaceful possession of the aforesaid piece or parcel of land.
3. Other suitable reliefs.”
The matter went into trial whereby several witnesses testified on behalf of the plaintiffs and the defendants.
The learned counsel for the parties addressed the Court which in its reserved and considered judgment delivered on 15th January, 2001, held, inter alia:
“Having held that the defendants broke into the land of the plaintiff as shown in Exhibit B, I hold further that they are entitled to general damages. I hereby make an award of N30, 000.00 to the Plaintiffs as general damages.
The defendants are also restrained by themselves, their agents, servants or privies from further interfering with the plaintiffs’ land verged Pink in Exhibit B and from further depositing sand or installing any offensive structure on the said land which they by their pleading and evidence did not dispute.”
The defendants were dissatisfied with the judgment delivered by Rosaline P.I. Bozimo (Mrs.) J. (as she then was). On the 22nd January 2001, they appealed to Court No. 1 of Ughelli High Court of Delta State. The defendants appeared to have subsequently realized the baselessness of their appeal and abandoned it. It therefore follows that there is no longer any appeal against the judgment of the Ughelli Court delivered on 15th January, 2001.
In these circumstances the plaintiffs/appellants, on 7th August, 2001 sought to enforce the judgment given in their favour on 15th January, 2001 by levying execution.
The following day, being 8th August, 2001 the defendants/respondents filed a motion on notice and sought the following reliefs:
“1 . An order fixing this motion for hearing and determination as an urgent application having regard to all the facts and circumstances.
2. An order setting aside the order of execution.
3. Stay of execution of Court’s order of injunction pending the hearing and determination of the appeal filed in this case there being no order of declaration of title.”
On 19th February, 2002, Akoro, J. of Ughelli High Court No. 1 of Delta State who is different from the Honourable Judge who heard and delivered judgment in the substantive case on 15th January, 2001, in his ruling granted all the reliefs therein and held, inter alia:
“It is trite that a trespasser is not entitled to equitable relief of stay of injunction or execution. See AJOMALE V. YADUAT (1991) 5 NWLR (PT. 191) 266 at 277 to 279.
The applicant was adjudged (sic) a trespasser in the judgment and is not entitled to equitable relied (sic) of stay of execution in respect of the area verged pink in Exhibit ‘B’ on which the judgment is based…..
I have examined the plans before the Court and it appears to me that some of the buildings for which writ of execution was levied are outside the area verged pink in Exhibit ‘B’. This, to my mind, is a special circumstance to warrant the stay of execution and this fine point raises a recondite point of law which should be resolved on appeal. For these reasons, the application succeeds in terms of the motion papers…”
The plaintiff/respondent/appellant being dissatisfied with the ruling filed four grounds of appeal.
The parties filed their respective briefs of argument.
The learned counsel for the appellants, I. Ovwighorienta Esq., raised the following two issues for the determination of the appeal:
“1. Whether on the law and having regard to the facts of this case, the learned trial Judge was right in granting the stay of execution pending appeal sought by the respondents.
2. Whether or not, in the instant case, the learned trial Judge was right in granting prayer 2 (two) on the motion paper i.e. An order setting aside the order of execution.”
The learned counsel for the respondents, AT Esombi Esq., formulated the following singular issue as arising for determination.
“Was the learned trial Judge right to have granted the order of stay of execution pending appeal having regard to the law and the circumstances?”
At the hearing of the appeal the learned counsel for the appellants and the respondents adopted and relied on the briefs of argument filed on behalf of their clients and respectively urged the Court to allow the appeal or dismiss the appeal as the determination of the appeal demands.
On close scrutiny of the two sets of briefs of argument with regard to the issues identified by the two parties, I am of the strong opinion that the sole issue raised by the respondents is apt enough for the determination of this appeal as it encompasses, albeit comprehensively, the two issues raised by the appellants. I am not unmindful of the fact that the instant appeal is at the instance of the appellants. Issues, however, are viewed from whether or not they are sourced from the grounds of appeal. It is apparent from the records that the appellants filed four grounds of appeal. It is now well accepted that one issue can be formulated from one or more grounds of appeal. It is therefore not out of place for the Court to consider the sole issue raised for the determination of this appeal since it is not visited by the negative trait of prolixity or multiplicity. Prolixity and/or multiplicity of issues have the effect or tendency to reduce most of them to trifles. Issues formulated must have the contents and character of issues and should be based on substantial facts rather(sic) numerous trifling slips. See IWUOHA & ANOR V. NIPOST LTD & ANOR. (2003) 8 NWLR (PART) 822 308 at 332.
I shall in view of the foregoing and at the expense of repetition determine the instant appeal on the singular issue raised by the respondents.
The learned counsel for the appellants submitted that the learned trial Judge was wrong when he granted the stay of execution pending appeal sought by the respondents on the basis, inter alia, that he was of the opinion “that some of the buildings for which writ of execution was levied are outside the area verged pink in Exhibit B. The learned counsel for the appellants argued that going by the ruling, the learned trial Judge formed his opinion from the examination of the plans before the Court. He, however, pointed out that the buildings on which the writs of execution were levied are not shown or indicated in exhibit B or in any other plan before the Court. He argued that exhibit B dated 16/5/95 which was filed and tendered before another Judge was in existence long before the judgment delivered on 15th January, 2001 whereas subsequent to the said judgment was the alleged execution of 7th August, 2001. He contended that the learned trial Judge did not visit the locus in quo to see the buildings on which execution was allegedly levied. He expatiated that the respondents filed an appeal against the judgment (delivered on 15/1/2001) on 22/1/2001 whereas the execution of the said judgment was levied on 7/8/2001. He therefore argued that the fact of the seemingly vexed execution which took place on 7/8/2001 cannot validly be the ground for staying the execution of the judgment of 15/1/2001 validly obtained pending appeal. He referred to the fact that the respondents abandoned the appeal against the judgment of 15/1/2001 but argued that that abandonment has nothing to do with the execution of 7/8/2001.
The learned counsel submitted that the respondents were not only adjudged trespassers; they were also restrained, thus:
“… by themselves, their agents, servants or privies from further interfering with the plaintiffs’ land verged pink in exhibit B and from further depositing sand or installing any offensive structure on the said land which they by their pleadings and evidence did not dispute.”
He further submitted that the law is now very well settled that an adjudged trespasser is not entitled to an order for stay of execution and called in aid the cases of ARCHITECTS REGISTRATION COUNCIL & ORS V. FASSISSI (NO.3) (1987) 3 NWLR (PT.59) 37; AKIBU V. ODUNTAN (1991) 2 NWLR (PT. 17I) 1; ENABULELE V. AGBONLAHOR (1994) 5 NWLR (PT. 342) 112; AJOMALE V. YADUAT (NO.2) (1991) 5 NWLR (PT. 191) 266 and OKAFOR V. NNAIFE (1987) 4 NWLR (PT. 64) 129 at 137. He argued that the learned trial Judge being aware of the position of the law on trespass held thus:
“It is trite law that a trespasser is not entitled to the equitable relief of stay of injunction or execution. See AJOMALE V. YADUAT (1991) 5 NWLR (PT. 191) at p. 266 at 277-279 r.9 – 22.
The applicant was adjudged a trespasser and is not entitled to equitable relied (sic) of stay of execution in respect of the area verged pink in Exhibit B on which the judgment is based.”
The learned counsel for the appellants submitted that the learned trial Judge had no legal justification in granting prayers 2 and 3 of the application and urged the Court to resolve the sole issue against the respondents and allow the appeal and dismiss the application dated 8/8/2001 in its entirety. It should be pointed out that relief 1 in the respondents’ motion on notice dated 8/8/2001 had, in the course of arguing the said motion by the learned counsel for the respondents, since been withdrawn and was struck out by the learned trial Judge.
In reply, the learned counsel for the respondents submitted that the learned trial Judge was right to have granted the order of stay of execution pending the determination of the appeal having regard to the law and the circumstances. He argued that the application was granted based on a very careful evaluation of the facts as could be sipped from the facts contained in the several affidavits, counter-affidavits and further affidavits filed by the parties. He further argued that the learned trial Judge also examined exhibit B which was before him before reaching the correct conclusion that some of the buildings for which writ of execution was levied are outside the area verged pink in Exhibit B. He submitted that it is a true statement of the law that stay of execution is a discretionary relief and its grant or refusal depends by and large on the peculiar circumstances of each case and cited in support the case of PAMOL (NIG) LTD. VS. LUAH AGRIC PROJECT LTD (2005) ALL FWLR (PT. 243) 787 at 791.
The learned counsel for the respondents further submitted that the following special circumstances or events must exist to ground a grant of stay of execution:
“(i) where the execution will have the effect of destroying the subject matter.
(ii) Where execution will foist on the Court, especially the Court of Appeal a situation of helplessness;
(iii) Where execution will render nugatory any order of the appellate Court;
(iv) Where execution will paralyze the exercise by the litigant of his constitutional right of appea1.
(v) Where the appellant cannot be returned to his status quo if the appeal succeeds;
(vi) Where the appellant has an important point of law to argue on appea1.”
He cited in support the cases of ORIENT BANK (NIG) PLC VS. BILANTE INTER. LTD. (1996) 5 NWLR (PT. 447) 166 and OKIN BISCUITS V OSHE (2001) FWLR (PT. 4) 1932 at 1945. He finally submitted that the appeal lacks merit and should be dismissed.
I have carefully considered the arguments and submissions of learned counsel for the parties in support or against the instant appeal. It is apt at this juncture to mention the obvious from the available facts that the respondents had since abandoned the appeal against the substantive appeal. The effect of such withdrawal and striking out of the substantive appeal is that the determination of the instant interlocutory appeal will not bear on the determination of this appeal or any appeal whatsoever. Accordingly the risk of delving into the substantive appeal is ruled out.
In view of the prevailing circumstances of the instant appeal, I am of opinion that it is not out of place to first consider the submissions proffered by the learned counsel for the respondents in urging the Court to dismiss the instant appeal. Thus, an incisive consideration of the said submissions showed that, though they are good statements of law, they are, however, not relevant to the granting of a discretionary relief or reliefs where the person or persons seeking such relief or reliefs had been adjudged a trespasser as it was the lot of the respondents in the judgment of the trial Court delivered on the 15th January, 2001.
The learned counsel for the appellants, in my respectful view, has impeccably stated the true position of the laws in the prevailing circumstances of this appeal. Any attempt to go into details will be purely repetitive and time consuming. I shall, however, state that there is a fact which the learned counsel for the respondents apparently did not attempt to controvert in his submissions that the respondents were adjudged trespassers on the 15th January, 2001. He, however, did not specifically disagree with the submissions of the learned counsel for the appellants who stated the true position of the law on trespass that a person adjudged a trespasser is not entitled to an order of stay of execution or injunction validly obtained pending appeal and relied on a number of cases including AJOMALE V. YADUAT (supra).
It is not in doubt that the reliefs sought by the respondents/applicants in the instant appeal are equitable in nature. It is an equitable maxim that he who comes to equity must come with clean hands. The respondents were adjudged trespassers in the judgment of the trial Court delivered on 15th January, 2001. The question is: Can the respondents who have been adjudged trespassers by a competent Court take advantage of equitable reliefs of stay of execution of the order of injunction and setting aside of that order when they have approached this Court with unclean or tainted hands? My answer is an emphatic no.
I agree with the submission of the learned counsel for the appellants that the learned trial Judge had no legal justification in granting the reliefs sought by the respondents/applicants in the motion on notice filed on 8/8/2001. The only issue raised for the determination of this appeal is accordingly resolved in favour of the appellants.
In sum, there is merit in the appeal and it is allowed. The motion on notice filed on 8/8/01 is also without merit and it is accordingly dismissed.
The respondents shall pay to the appellants costs of prosecuting this appeal which I assessed at N30, 000.00 (Thirty Thousand Naira).
Other Citations: (2008)LCN/3029(CA)
